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Section 4(a)(1) of the Cybercrime Law

Section 4(a)(1) provides:

Section 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable
under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

(1) Illegal Access. The access to the whole or any part of a computer system without right.

Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required of laws
that interfere with the fundamental rights of the people and should thus be struck down.

The Court finds nothing in Section 4(a)(1) that calls for the application of the strict scrutiny standard
since no fundamental freedom, like speech, is involved in punishing what is essentially a
condemnable act accessing the computer system of another without right. It is a universally
condemned conduct.

Besides, a clients engagement of an ethical hacker requires an agreement between them as to the
extent of the search, the methods to be used, and the systems to be tested. Since the ethical hacker
does his job with prior permission from the client, such permission would insulate him from the
coverage of Section 4(a)(1).

Hence, valid and constitutional.


Section 4(a)(3) of the Cybercrime Law

Section 4(a)(3) provides:

(3) Data Interference. The intentional or reckless alteration, damaging, deletion or deterioration of
computer data, electronic document, or electronic data message, without right, including the
introduction or transmission of viruses.

Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to discourage
data interference, it intrudes into the area of protected speech and expression, creating a chilling
and deterrent effect on these guaranteed freedoms.

Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state
regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby
invading the area of protected freedoms.But Section 4(a)(3) does not encroach on these freedoms
at all. It simply punishes what essentially is a form of vandalism,the act of willfully destroying without
right the things that belong to others, in this case their computer data, electronic document, or
electronic data message. Such act has no connection to guaranteed freedoms. There is no freedom
to destroy other peoples computer systems and private documents.

Besides, the overbreadth challenge places on petitioners the heavy burden of proving that under
no set of circumstances will Section 4(a)(3) be valid.Petitioner has failed to discharge this burden.

Hence, valid and constitutional.


Section 4(a)(6) of the Cybercrime Law

Section 4(a)(6) provides:

(6) Cyber-squatting. The acquisition of domain name over the internet in bad faith to profit,
mislead, destroy the reputation, and deprive others from registering the same, if such a domain
name is:

(i) Similar, identical, or confusingly similar to an existing trademark registered with the appropriate
government agency at the time of the domain name registration;

(ii) Identical or in any way similar with the name of a person other than the registrant, in case of a
personal name; and

(iii) Acquired without right or with intellectual property interests in it.

Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection clausein that,
not being narrowly tailored, it will cause a user using his real name to suffer the same fate as those
who use aliases or take the name of another in satire, parody, or any other literary device.

The law is reasonable in penalizing the offender for acquiring the domain name in bad faith to
profit, mislead, destroy reputation, or deprive others who are not ill-motivated of the rightful
opportunity of registering the same.

Hence, valid and constitutional.


Section 4(b)(3) of the Cybercrime Law

Section 4(b)(3) provides:

b) Computer-related Offenses:

xxxx

(3) Computer-related Identity Theft. The intentional acquisition, use, misuse, transfer, possession,
alteration, or deletion of identifying information belonging to another, whether natural or juridical,
without right: Provided: that if no damage has yet been caused, the penalty imposable shall be
one (1) degree lower.

Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to privacy
and correspondence, and transgresses the freedom of the press.

In Morfe v. Mutuc,it ruled that the right to privacy exists independently of its identification with
liberty; it is in itself fully deserving of constitutional protection.

Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy."

Zones of privacy are recognized and protected in our laws. Within these zones, any form of
intrusion is impermissible unless excused by law and in accordance with customary legal process.
The meticulous regard we accord to these zones arises not only from our conviction that the right
to privacy is a "constitutional right" and "the right most valued by civilized men," but also from our
adherence to the Universal Declaration of Human Rights which mandates that, "no one shall be
subjected to arbitrary interference with his privacy" and "everyone has the right to the protection
of the law against such interference or attacks." In the Matter of the Petition for Issuance of Writ of
Habeas Corpus of Sabio v. Senator Gordon, 535 Phil. 687, 714-715 (2006).

Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable
searchesand seizures, which is the basis of the right to be let alone, and (b) the right to privacy of
communication and correspondence.In assessing the challenge that the State has impermissibly
intruded into these zones of privacy, a court must determine whether a person has exhibited a
reasonable expectation of privacy and, if so, whether that expectation has been violated by
unreasonable government intrusion.

Petitioners simply fail to show how government effort to curb computer-related identity theft
violates the right to privacy and correspondence as well as the right to due process of law.

Clearly, what this section regulates are specific actions: the acquisition, use, misuse or deletion of
personal identifying data of another. There is no fundamental right to acquire anothers personal
data.

Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists
would be hindered from accessing the unrestricted user account of a person in the news to secure
information about him that could be published.

The Court held, the press, whether in quest of news reporting or social investigation, has nothing
to fear since a special circumstance is present to negate intent to gain which is required by this
Section.
Hence, valid and constitutional.

Section 4(c)(1) of the Cybercrime Law

Section 4(c)(1) provides:

(c) Content-related Offenses:

(1) Cybersex. The willful engagement, maintenance, control, or operation, directly or indirectly, of
any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for
favor or consideration.

Petitioners claim that the above violates the freedom of expression clause.They express fear that
private communications of sexual character between husband and wife or consenting adults, which
are not regarded as crimes under the penal code, would now be regarded as crimes when done
"for favor" in cyberspace. In common usage, the term "favor" includes "gracious kindness," "a
special privilege or right granted or conceded," or "a token of love (as a ribbon) usually worn
conspicuously."This meaning given to the term "favor" embraces socially tolerated trysts. The law
as written would invite law enforcement agencies into the bedrooms of married couples or
consenting individuals.

The Act actually seeks to punish cyber prostitution, white slave trade, and pornography for favor
and consideration. This includes interactive prostitution and pornography, i.e., by webcam.
Likewise, engaging in sexual acts privately through internet connection, perceived by some as a
right, has to be balanced with the mandate of the State to eradicate white slavery and the
exploitation of women.

Hence, valid and constitutional.

Section 4(c)(2) of the Cybercrime Law

Section 4(c)(2) provides:

(2) Child Pornography. The unlawful or prohibited acts defined and punishable by Republic Act No.
9775 or the Anti-Child Pornography Act of 2009, committed through a computer system: Provided,
That the penalty to be imposed shall be (1) one degree higher than that provided for in Republic
Act No. 9775.

The above merely expands the scope of the Anti-Child Pornography Act of 2009(ACPA) to cover
identical activities in cyberspace. In theory, nothing prevents the government from invoking the
ACPA when prosecuting persons who commit child pornography using a computer system.
Actually, ACPAs definition of child pornography already embraces the use of "electronic,
mechanical, digital, optical, magnetic or any other means."

Of course, the law makes the penalty higher by one degree when the crime is committed in
cyberspace. But no one can complain since the intensity or duration of penalty is a legislative
prerogative and there is rational basis for such higher penalty.The potential for uncontrolled
proliferation of a particular piece of child pornography when uploaded in the cyberspace is
incalculable.
Hence, valid and constitutional.

Section 4(c)(3) of the Cybercrime Law

Section 4(c)(3) provides:

(3) Unsolicited Commercial Communications. The transmission of commercial electronic


communication with the use of computer system which seeks to advertise, sell, or offer for sale
products and services are prohibited unless:

(i) There is prior affirmative consent from the recipient; or

(ii) The primary intent of the communication is for service and/or administrative announcements
from the sender to its existing users, subscribers or customers; or

(iii) The following conditions are present:

(aa) The commercial electronic communication contains a simple, valid, and reliable way for the
recipient to reject receipt of further commercial electronic messages (opt-out) from the same
source;

(bb) The commercial electronic communication does not purposely disguise the source of the
electronic message; and
(cc) The commercial electronic communication does not purposely include misleading information
in any part of the message in order to induce the recipients to read the message.

The above penalizes the transmission of unsolicited commercial communications, also known as
"spam." The term "spam" surfaced in early internet chat rooms and interactive fantasy games. One
who repeats the same sentence or comment was said to be making a "spam."

The Government, represented by the Solicitor General, points out that unsolicited commercial
communications or spams are a nuisance that wastes the storage and network capacities of internet
service providers, reduces the efficiency of commerce and technology, and interferes with the
owners peaceful enjoyment of his property. Transmitting spams amounts to trespass to ones
privacy since the person sending out spams enters the recipients domain without prior permission.
The OSG contends that commercial speech enjoys less protection in law.

These have never been outlawed as nuisance since people might have interest in such ads. What
matters is that the recipient has the option of not opening or reading these mail ads. That is true
with spams. Their recipients always have the option to delete or not to read them.

To prohibit the transmission of unsolicited ads would deny a person the right to read his emails,
even unsolicited commercial ads addressed to him. Unsolicited advertisements are legitimate forms
of expression.

Hence, void for being unconstitutional.

Articles 353, 354, and 355 of the Penal Code and Section 4(c)(4) of the Cyber Crime Law
Petitioners dispute the constitutionality of both the penal code provisions on libel as well as Section
4(c)(4) of the Cybercrime Prevention Act on cyberlibel.

The RPC provisions on libel read:

Art. 353. Definition of libel. A libel is public and malicious imputation of a crime, or of a vice or
defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause
the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of
one who is dead.

Art. 354. Requirement for publicity. Every defamatory imputation is presumed to be malicious, even
if it be true, if no good intention and justifiable motive for making it is shown, except in the following
cases:

1. A private communication made by any person to another in the performance of any legal, moral
or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial,
legislative or other official proceedings which are not of confidential nature, or of any statement,
report or speech delivered in said proceedings, or of any other act performed by public officers in
the exercise of their functions.

Art. 355. Libel means by writings or similar means. A libel committed by means of writing, printing,
lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic
exhibition, or any similar means, shall be punished by prision correccional in its minimum and
medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action
which may be brought by the offended party.

The libel provision of the cybercrime law, on the other hand, merely incorporates to form part of
it the provisions of the RPC on libel. Thus Section 4(c)(4) reads:

Sec. 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable
under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(4) Libel. The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code,
as amended, committed through a computer system or any other similar means which may be
devised in the future.

Petitioners lament that libel provisions of the penal codeand, in effect, the libel provisions of the
cybercrime law carry with them the requirement of "presumed malice" even when the latest
jurisprudence already replaces it with the higher standard of "actual malice" as a basis for
conviction.Petitioners argue that inferring "presumed malice" from the accuseds defamatory
statement by virtue of Article 354 of the penal code infringes on his constitutionally guaranteed
freedom of expression.
Libel is not a constitutionally protected speech and that the government has an obligation to
protect private individuals from defamation. Indeed, cyberlibel is actually not a new crime since
Article 353, in relation to Article 355 of the penal code, already punishes it. In effect, Section 4(c)(4)
above merely affirms that online defamation constitutes "similar means" for committing libel.

But the Courts acquiescence goes only insofar as the cybercrime law penalizes the author of the
libelous statement or article. Cyberlibel brings with it certain intricacies, unheard of when the penal
code provisions on libel were enacted. The culture associated with internet media is distinct from
that of print.

The internet is characterized as encouraging a freewheeling, anything-goes writing style. In a sense,


they are a world apart in terms of quickness of the readers reaction to defamatory statements
posted in cyberspace, facilitated by one-click reply options offered by the networking site as well
as by the speed with which such reactions are disseminated down the line to other internet users.

Hence, Section 4(c)(4) penalizing online libel is valid and constitutional with respect to the original
author of the post; but void and unconstitutional with respect to others who simply receive the
post and react to it.

Section 5 of the Cybercrime Law

Section 5 provides:

Sec. 5. Other Offenses. The following acts shall also constitute an offense:
(a) Aiding or Abetting in the Commission of Cybercrime. Any person who willfully abets or aids in
the commission of any of the offenses enumerated in this Act shall be held liable.

(b) Attempt in the Commission of Cybercrime. Any person who willfully attempts to commit any of
the offenses enumerated in this Act shall be held liable.

Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who
willfully abets or aids in the commission or attempts to commit any of the offenses enumerated as
cybercrimes. It suffers from overbreadth, creating a chilling and deterrent effect on protected
expression.

The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding
and abetting sufficiently protects the freedom of expression of "netizens," the multitude that avail
themselves of the services of the internet. He points out that existing laws and jurisprudence
sufficiently delineate the meaning of "aiding or abetting" a crime as to protect the innocent. The
Solicitor General argues that plain, ordinary, and common usage is at times sufficient to guide law
enforcement agencies in enforcing the law.

Libel in the cyberspace can of course stain a persons image with just one click of the mouse.
Scurrilous statements can spread and travel fast across the globe like bad news. Moreover,
cyberlibel often goes hand in hand with cyberbullying that oppresses the victim, his relatives, and
friends, evoking from mild to disastrous reactions. Still, a governmental purpose, which seeks to
regulate the use of this cyberspace communication technology to protect a persons reputation
and peace of mind, cannot adopt means that will unnecessarily and broadly sweep, invading the
area of protected freedoms. Griswold v. Connecticut, 381 U.S. 479 (1965).
If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet
users will suppress otherwise robust discussion of public issues. Democracy will be threatened and
with it, all liberties. Penal laws should provide reasonably clear guidelines for law enforcement
officials and triers of facts to prevent arbitrary and discriminatory enforcement. (Adonis) G.R. No.
203378The terms "aiding or abetting" constitute broad sweep that generates chilling effect on
those who express themselves through cyberspace posts, comments, and other messages.

Hence, Section 5 of the cybercrime law that punishes "aiding or abetting" libel on the cyberspace
is a nullity.

As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is


inevitable that any government threat of punishment regarding certain uses of the medium creates
a chilling effect on the constitutionally-protected freedom of expression of the great masses that
use it. In this case, the particularly complex web of interaction on social media websites would give
law enforcers such latitude that they could arbitrarily or selectively enforce the law.

Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on
the part of internet users because of its obvious chilling effect on the freedom of expression,
especially since the crime of aiding or abetting ensnares all the actors in the cyberspace front in a
fuzzy way.In the absence of legislation tracing the interaction of netizens and their level of
responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section
4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography,
cannot stand scrutiny.

But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be
permitted to apply to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section
4(a)(3) on Data Interference, Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of
Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related Forgery, Section
4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity Theft, and
Section 4(c)(1) on Cybersex. None of these offenses borders on the exercise of the freedom of
expression.

Section 6 of the Cybercrime Law

Section 6 provides:

Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws,
if committed by, through and with the use of information and communications technologies shall
be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall
be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and
special laws, as the case may be.

Section 6 merely makes commission of existing crimes through the internet a qualifying
circumstance. As the Solicitor General points out, there exists a substantial distinction between
crimes committed through the use of information and communications technology and similar
crimes committed using other means. In using the technology in question, the offender often
evades identification and is able to reach far more victims or cause greater harm. The distinction,
therefore, creates a basis for higher penalties for cybercrimes.

Hence, valid and constitutional.

Section 7 of the Cybercrime Law

Section 7 provides:
Sec. 7. Liability under Other Laws. A prosecution under this Act shall be without prejudice to any
liability for violation of any provision of the Revised Penal Code, as amended, or special laws.

Online libel is different. There should be no question that if the published material on print, said to
be libelous, is again posted online or vice versa, that identical material cannot be the subject of
two separate libels. The two offenses, one a violation of Article 353 of the Revised Penal Code and
the other a violation of Section 4(c)(4) of R.A. 10175 involve essentially the same elements and are
in fact one and the same offense. Indeed, the OSG itself claims that online libel under Section
4(c)(4) is not a new crime but is one already punished under Article 353. Section 4(c)(4) merely
establishes the computer system as another means of publication. Charging the offender under
both laws would be a blatant violation of the proscription against double jeopardy.

The Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section 7 that
authorizes prosecution of the offender under both the Revised Penal Code and Republic Act 10175
to actual cases, WITH THE EXCEPTION of the crimes of:

1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act 10175
and Article 353 of the Revised Penal Code constitutes a violation of the proscription against double
jeopardy; as well as

2. Child pornography committed online as to which, charging the offender under both Section
4(c)(2) of Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of 2009
also constitutes a violation of the same proscription, and, in respect to these, is void and
unconstitutional.

Section 8 of the Cybercrime Law


Section 8 provides:

Sec. 8. Penalties. Any person found guilty of any of the punishable acts enumerated in Sections
4(a) and 4(b) of this Act shall be punished with imprisonment of prision mayor or a fine of at least
Two hundred thousand pesos (PhP200,000.00) up to a maximum amount commensurate to the
damage incurred or both.

Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with
imprisonment of prision mayor or a fine of not more than Five hundred thousand pesos
(PhP500,000.00) or both.

If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of
reclusion temporal or a fine of at least Five hundred thousand pesos (PhP500,000.00) up to
maximum amount commensurate to the damage incurred or both, shall be imposed.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall
be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(PhP200,000.00) but not exceeding One million pesos (PhP1,000,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act
shall be punished with the penalties as enumerated in Republic Act No. 9775 or the "Anti-Child
Pornography Act of 2009:" Provided, That the penalty to be imposed shall be one (1) degree higher
than that provided for in Republic Act No. 9775, if committed through a computer system.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be
punished with imprisonment of arresto mayor or a fine of at least Fifty thousand pesos
(PhP50,000.00) but not exceeding Two hundred fifty thousand pesos (PhP250,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished
with imprisonment one (1) degree lower than that of the prescribed penalty for the offense or a
fine of at least One hundred thousand pesos (PhP100,000.00) but not exceeding Five hundred
thousand pesos (PhP500,000.00) or both.

The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative.
Here the legislature prescribed a measure of severe penalties for what it regards as deleterious
cybercrimes. Judges and magistrates can only interpret and apply them and have no authority to
modify or revise their range as determined by the legislative department.

The courts should not encroach on this prerogative of the lawmaking body.

Hence, valid and constitutional.

Section 12 of the Cybercrime Law

Section 12 provides:

Sec. 12. Real-Time Collection of Traffic Data. Law enforcement authorities, with due cause, shall be
authorized to collect or record by technical or electronic means traffic data in real-time associated
with specified communications transmitted by means of a computer system.
Traffic data refer only to the communications origin, destination, route, time, date, size, duration,
or type of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection
or recording of the above-stated information.

The court warrant required under this section shall only be issued or granted upon written
application and the examination under oath or affirmation of the applicant and the witnesses he
may produce and the showing: (1) that there are reasonable grounds to believe that any of the
crimes enumerated hereinabove has been committed, or is being committed, or is about to be
committed; (2) that there are reasonable grounds to believe that evidence that will be obtained is
essential to the conviction of any person for, or to the solution of, or to the prevention of, any such
crimes; and (3) that there are no other means readily available for obtaining such evidence.

Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic
data in real time as tending to curtail civil liberties or provide opportunities for official abuse. They
claim that data showing where digital messages come from, what kind they are, and where they
are destined need not be incriminating to their senders or recipients before they are to be
protected. Petitioners invoke the right of every individual to privacy and to be protected from
government snooping into the messages or information that they send to one another.

Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need
to put order to the tremendous activities in cyberspace for public good. To do this, it is within the
realm of reason that the government should be able to monitor traffic data to enhance its ability
to combat all sorts of cybercrimes.

Informational privacy has two aspects: the right not to have private information disclosed, and the
right to live freely without surveillance and intrusion.In determining whether or not a matter is
entitled to the right to privacy, this Court has laid down a two-fold test. The first is a subjective test,
where one claiming the right must have an actual or legitimate expectation of privacy over a certain
matter. The second is an objective test, where his or her expectation of privacy must be one society
is prepared to accept as objectively reasonable. 429 U.S. 589 (1977)

Since the validity of the cybercrime law is being challenged, not in relation to its application to a
particular person or group, petitioners challenge to Section 12 applies to all information and
communications technology (ICT) users, meaning the large segment of the population who use all
sorts of electronic devices to communicate with one another. Consequently, the expectation of
privacy is to be measured from the general publics point of view. Without reasonable expectation
of privacy, the right to it would have no basis in fact.

In Whalen v. Roe, 429 U.S. 589 (1977)the United States Supreme Court classified privacy into two
categories: decisional privacy and informational privacy. Decisional privacy involves the right to
independence in making certain important decisions, while informational privacy refers to the
interest in avoiding disclosure of personal matters. It is the latter rightthe right to informational
privacythat those who oppose government collection or recording of traffic data in real-time seek
to protect.

Section 12 does not permit law enforcement authorities to look into the contents of the messages
and uncover the identities of the sender and the recipient.
Section 12, of course, limits the collection of traffic data to those "associated with specified
communications." But this supposed limitation is no limitation at all since, evidently, it is the law
enforcement agencies that would specify the target communications. The power is virtually
limitless, enabling law enforcement authorities to engage in "fishing expedition," choosing
whatever specified communication they want. This evidently threatens the right of individuals to
privacy.

The Court must ensure that laws seeking to take advantage of these technologies be written with
specificity and definiteness as to ensure respect for the rights that the Constitution guarantees.

Hence, void for being unconstitutional

Section 13 of the Cybercrime Law

Section 13 provides:

Sec. 13. Preservation of Computer Data. The integrity of traffic data and subscriber information
relating to communication services provided by a service provider shall be preserved for a
minimum period of six (6) months from the date of the transaction. Content data shall be similarly
preserved for six (6) months from the date of receipt of the order from law enforcement authorities
requiring its preservation.

Law enforcement authorities may order a one-time extension for another six (6) months: Provided,
That once computer data preserved, transmitted or stored by a service provider is used as evidence
in a case, the mere furnishing to such service provider of the transmittal document to the Office of
the Prosecutor shall be deemed a notification to preserve the computer data until the termination
of the case.

The service provider ordered to preserve computer data shall keep confidential the order and its
compliance.

Petitioners in G.R. No. 203391 (Palatino v. Ochoa)claim that Section 13 constitutes an undue
deprivation of the right to property. They liken the data preservation order that law enforcement
authorities are to issue as a form of garnishment of personal property in civil forfeiture proceedings.
Such order prevents internet users from accessing and disposing of traffic data that essentially
belong to them.

No doubt, the contents of materials sent or received through the internet belong to their authors
or recipients and are to be considered private communications. But it is not clear that a service
provider has an obligation to indefinitely keep a copy of the same as they pass its system for the
benefit of users. By virtue of Section 13, however, the law now requires service providers to keep
traffic data and subscriber information relating to communication services for at least six months
from the date of the transaction and those relating to content data for at least six months from
receipt of the order for their preservation.

At any rate, as the Solicitor General correctly points out, the data that service providers preserve
on orders of law enforcement authorities are not made inaccessible to users by reason of the
issuance of such orders. The process of preserving data will not unduly hamper the normal
transmission or use of the same.

Hence, valid and constitutional


Section 14 of the Cybercrime Law

Section 14 provides:

Sec. 14. Disclosure of Computer Data. Law enforcement authorities, upon securing a court warrant,
shall issue an order requiring any person or service provider to disclose or submit subscribers
information, traffic data or relevant data in his/its possession or control within seventy-two (72)
hours from receipt of the order in relation to a valid complaint officially docketed and assigned for
investigation and the disclosure is necessary and relevant for the purpose of investigation.

The process envisioned in Section 14 is being likened to the issuance of a subpoena.

Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a
function usually lodged in the hands of law enforcers to enable them to carry out their executive
functions. The prescribed procedure for disclosure would not constitute an unlawful search or
seizure nor would it violate the privacy of communications and correspondence. Disclosure can be
made only after judicial intervention.

Hence, valid and constitutional.

Section 15 of the Cybercrime Law

Section 15 provides:
Sec. 15. Search, Seizure and Examination of Computer Data. Where a search and seizure warrant is
properly issued, the law enforcement authorities shall likewise have the following powers and
duties.

Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:

(a) To secure a computer system or a computer data storage medium;

(b) To make and retain a copy of those computer data secured;

(c) To maintain the integrity of the relevant stored computer data;

(d) To conduct forensic analysis or examination of the computer data storage medium; and

(e) To render inaccessible or remove those computer data in the accessed computer or computer
and communications network.

Pursuant thereof, the law enforcement authorities may order any person who has knowledge about
the functioning of the computer system and the measures to protect and preserve the computer
data therein to provide, as is reasonable, the necessary information, to enable the undertaking of
the search, seizure and examination.

Law enforcement authorities may request for an extension of time to complete the examination of
the computer data storage medium and to make a return thereon but in no case for a period
longer than thirty (30) days from date of approval by the court.
Petitioners challenge Section 15 on the assumption that it will supplant established search and
seizure procedures.

The exercise of these duties do not pose any threat on the rights of the person from whom they
were taken. Section 15 does not appear to supersede existing search and seizure rules but merely
supplements them.

Hence, valid and constitutional.

Section 17 of the Cybercrime Law

Section 17 provides:

Sec. 17. Destruction of Computer Data. Upon expiration of the periods as provided in Sections 13
and 15, service providers and law enforcement authorities, as the case may be, shall immediately
and completely destroy the computer data subject of a preservation and examination.

Petitioners claim that such destruction of computer data subject of previous preservation or
examination violates the users right against deprivation of property without due process of law.
But, as already stated, it is unclear that the user has a demandable right to require the service
provider to have that copy of the data saved indefinitely for him in its storage system. If he wanted
them preserved, he should have saved them in his computer when he generated the data or
received it. He could also request the service provider for a copy before it is deleted.
Hence, valid and constitutional.

Section 19 of the Cybercrime Law

Section 19 empowers the Department of Justice to restrict or block access to computer data:

Sec. 19. Restricting or Blocking Access to Computer Data. When a computer data is prima facie
found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block
access to such computer data.

Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against
unreasonable searches and seizures. The Solicitor General concedes that this provision may be
unconstitutional. But since laws enjoy a presumption of constitutionality, the Court must satisfy
itself that Section 19 indeed violates the freedom and right mentioned.

Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential
guidelines established to determine the validity of restrictions on speech. Restraints on free speech
are generally evaluated on one of or a combination of three tests: the dangerous tendency
doctrine, the balancing of interest test, and the clear and present danger rule. Section 19, however,
merely requires that the data to be blocked be found prima facie in violation of any provision of
the cybercrime law. Taking Section 6 into consideration, this can actually be made to apply in
relation to any penal provision. It does not take into consideration any of the three tests mentioned
above.

The Court is therefore compelled to strike down Section 19 for being violative of the constitutional
guarantees to freedom of expression and against unreasonable searches and seizures.
Section 20 of the Cybercrime Law

Section 20 provides:

Sec. 20. Noncompliance. Failure to comply with the provisions of Chapter IV hereof specifically the
orders from law enforcement authorities shall be punished as a violation of Presidential Decree No.
1829 with imprisonment of prision correctional in its maximum period or a fine of One hundred
thousand pesos (Php100,000.00) or both, for each and every noncompliance with an order issued
by law enforcement authorities.

Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that the mere
failure to comply constitutes a legislative finding of guilt, without regard to situations where non-
compliance would be reasonable or valid.

But since the non-compliance would be punished as a violation of Presidential Decree (P.D.)
1829,PENALIZING OBSTRUCTION OF APPREHENSION AND PROSECUTION OF CRIMINAL
OFFENDERS. Section 20 necessarily incorporates elements of the offense which are defined therein.

Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or willfully."
There must still be a judicial determination of guilt, during which, as the Solicitor General assumes,
defense and justifications for non-compliance may be raised. Thus, Section 20 is valid insofar as it
applies to the provisions of Chapter IV which are not struck down by the Court.

Hence, valid and constitutional.


Sections 24 and 26(a) of the Cybercrime Law

Sections 24 and 26(a) provide:

Sec. 24. Cybercrime Investigation and Coordinating Center. There is hereby created, within thirty
(30) days from the effectivity of this Act, an inter-agency body to be known as the Cybercrime
Investigation and Coordinating Center (CICC), under the administrative supervision of the Office of
the President, for policy coordination among concerned agencies and for the formulation and
enforcement of the national cybersecurity plan.

Sec. 26. Powers and Functions. The CICC shall have the following powers and functions:

(a) To formulate a national cybersecurity plan and extend immediate assistance of real time
commission of cybercrime offenses through a computer emergency response team (CERT); x x x.

Petitioners mainly contend that Congress invalidly delegated its power when it gave the
Cybercrime Investigation and Coordinating Center (CICC) the power to formulate a national
cybersecurity plan without any sufficient standards or parameters for it to follow.

In order to determine whether there is undue delegation of legislative power, the Court has
adopted two tests: the completeness test and the sufficient standard test. Under the first test, the
law must be complete in all its terms and conditions when it leaves the legislature such that when
it reaches the delegate, the only thing he will have to do is to enforce it.1avvphi1The second test
mandates adequate guidelines or limitations in the law to determine the boundaries of the
delegates authority and prevent the delegation from running riot. Gerochi v. Department of
Energy, 554 Phil. 563 (2007).
Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement
a national cybersecurity plan. Also, contrary to the position of the petitioners, the law gave sufficient
standards for the CICC to follow when it provided a definition of cybersecurity.

Cybersecurity refers to the collection of tools, policies, risk management approaches, actions,
training, best practices, assurance and technologies that can be used to protect cyber environment
and organization and users assets.This definition serves as the parameters within which CICC
should work in formulating the cybersecurity plan.

Further, the formulation of the cybersecurity plan is consistent with the policy of the law to "prevent
and combat such [cyber] offenses by facilitating their detection, investigation, and prosecution at
both the domestic and international levels, and by providing arrangements for fast and reliable
international cooperation." This policy is clearly adopted in the interest of law and order, which has
been considered as sufficient standard.

Hence, Sections 24 and 26(a) are likewise valid and constitutional.